The GOP's Amazing Intellectual Somersault

January 07, 1994|By GEORGE F. WILL

Washington -- His enthusiasm having dethroned his judgment, Newt Gingrich, that highly carbonated congressman, has joined the Republican clamor for an independent counsel to investigate whether the Clintons did serious wrongs regarding the Whitewater land development in Arkansas.

Mr. Gingrich adopts the egalitarian cant normal when politicians express synthetic altruism: He says an independent counsel is needed lest adolescent miscreants in East L.A. think presidents are above the law. But in addition to being concerned about the civic sensibilities of wayward youths, Republicans are seeking vengeance, albeit tarted up with pieties about ''the public's right to know.''

Republicans think it is the Democrats' turn to experience the fangs of independent counsels. And in fact when President Clinton's man George Stephanopoulos says no independent counsel is needed because Whitewater ''has been looked at by newspapers and is being looked at by the Justice Department,'' he speaks words that would be roundly ridiculed by Democrats in Congress, and by journalists, were he a Republican.

Congress created the independent counsel apparatus as a ''Watergate reform'' in 1978. It was accepted by President Carter against the advice of his attorney general, Griffin Bell, who rightly considered it unconstitutional.

It unleashed against the executive branch people performing the purely executive function of prosecution yet uncontrolled by the chief executive. This conflicts with the Constitution's creation of three and only three separate branches. Unaccountability has frequently bred irresponsibility, and when the independent-counsel law expired last December sensible Republicans and others said good riddance.

Republicans now calling for revival of the law are ignoring its constitutional dubiety and the damage it does to the civic culture. But today the word ''Watergate'' still serves as an argument for the law. That is absurd.

In the summer of 1973 Republican prosecutors mounted devastating cases against the Republican president and his vice president. When the U.S. attorney for Maryland found that Spiro Agnew had taken bribes as governor, and that payments continued to him as vice president, a grand jury indicted him. He plea-bargained and resigned.

He was allowed to bargain because Attorney General Elliot Richardson knew that President Nixon was trapped by an investigation already far advanced before Archibald Cox became special prosecutor. The U.S. attorney for the District of Columbia, a Republican, already had most of the information that filled the 90 pages he soon gave to Cox, sketching the conspiracy.

Today some Republicans, making use of their time out of power to prove that they deserve to be there, try to put a patina of seriousness on their intellectual somersault regarding an independent counsel law. They say such a law is needed now that both political branches are controlled by the same party. But that condition existed often during the 189 years that Constitution processes functioned without the sort of law now called indispensable.

Supporters of an independent counsel apparatus say it is necessary to bolster confidence in government. However, enactment of such a law announces the premise that the highest levels of government are usually staffed by people without integrity. Another premise is that other relevant institutions, including Congress and the media, are impotent or corrupt.

Regarding Whitewater, yes, the Clintons have proved themselves to be less than forthcoming and even misleading. But this is not a news bulletin about the pair who promised a middle-class tax cut and authored the proposed health-care reform which does not read as it is advertised. Besides, what conceivable misdeeds by the Clintons in Arkansas are important enough to justify reviving an independent counsel that violates the Constitution and short-circuits the political process?

Yes, Attorney General Janet Reno inspires no confidence: Her demand for the prompt resignation of all U.S. attorneys looked like an attempt to abort the investigation of Rep. Dan Rostenkowski, and her department reeks of Arkansas-style cronyism. Yes, she and the Arkansans in the department should publicly recuse themselves from participation in any Whitewater investigation.

Yes, if Mr. Clinton were a Republican, Congress and the media would have caused the independent-counsel law to be revived for an investigation of White House abuses regarding the travel office. And, yes, if he were a Republican, Congress would be investigating Whitewater. Congress' investigative powers, which produced the crucial Watergate breakthrough -- the discovery of Nixon's taping system -- are one reason an independent counsel apparatus is unnecessary.

If the Justice Department and Congress fail to function well regarding Whitewater, that will not be a constitutional crisis. On the contrary, for such political failures the Constitution provides regular occasions for condign punishments. They are called elections.